Yalcin v. Sessions ( 2018 )

16-925
Yalcin v. Sessions
BIA
A074 856 144
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 8th day of February , two thousand eighteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 ROBERT D. SACK,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 ALI YALCIN,
14 Petitioner,
15
16 v. 16-925
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Elyssa N. Williams, Formica
24 Williams, P.C., New Haven, CT.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General;
28 Jennifer P. Levings, Senior
29 Litigation Counsel; Monica Antoun,
30 Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Ali Yalcin, a native and citizen of Turkey,
6 seeks review of a February 29, 2015, decision of the BIA denying
7 his motion to reopen. In re Ali Yalcin, No. A074 856 144 (B.I.A.
8 Feb. 29, 2015). We assume the parties’ familiarity with the
9 underlying facts and procedural history in this case.
10 When an alien, such as Yalcin, petitions for review of the
11 denial of a motion to reopen, we review only the denial of the
12 motion, not the agency’s underlying decisions. Paul v.
13 Gonzales, 444 F.3d 148, 153 (2d Cir. 2006). The BIA “may deny
14 a motion to reopen based upon the failure to establish a prima
15 facie case for the relief sought.” Matter of Coelho, 20 I. &
16 N. Dec. 464, 472 (BIA 1992) (citations omitted); see also INS
17 v. Abudu, 485 U.S. 94, 104 (1988). We review the BIA’s denial
18 of a motion to reopen for “abuse of discretion, mindful that
19 motions to reopen ‘are disfavored.’” Ali v. Gonzales, 448 F.3d
20 515, 517 (2d Cir. 2006) (quoting INS v. Doherty, 502 U.S. 314,
21 323 (1992)). “An abuse of discretion may be found in those
22 circumstances where the Board’s decision provides no rational
2
1 explanation, inexplicably departs from established policies,
2 is devoid of any reasoning, or contains only summary or
3 conclusory statements; that is to say, where the Board has acted
4 in an arbitrary and capricious manner.” Kaur v. BIA, 413 F.3d
5 232, 233–34 (2d Cir. 2005) (citation omitted).
6 The BIA was within its discretion to find that Yalcin failed
7 to establish his prima facie eligibility for asylum. The IJ’s
8 adverse credibility determination was based on several
9 inconsistencies between Yalcin’s asylum application,
10 supporting statement, and testimony regarding his affiliation
11 with--or opposition to--a Kurdish political faction and his
12 run-ins with Turkish law enforcement. That finding was
13 dispositive of Yalcin’s claims for asylum, withholding of
14 removal, and CAT relief. Paul v. Gonzales, 444 F.3d 148, 156-57
15 (2d Cir. 2006) (explaining that if the same factual assertions
16 supported all claims for relief, an adverse credibility
17 determination necessarily foreclosed relief on all claims).
18 The BIA reasonably concluded that evidence of heightened
19 tensions between the Kurdish faction, the Turkish government,
20 and ISIS “was not ‘material’ because it did not rebut the adverse
21 credibility finding that provided the basis for the IJ’s denial
22 of [Yalcin’s] underlying asylum application.” Kaur, 413 F.3d
3
1 at 234 (citation omitted).
2 Yalcin argues that the BIA could not rely on an adverse
3 credibility determination that it has never reviewed. The law
4 does not support this argument. See id. (noting that review
5 was limited to the denial of reopening because Kaur failed to
6 timely petition for review of the BIA’s decision affirming an
7 IJ’s adverse credibility determination).
8 Yalcin also submits that the BIA failed to acknowledge the
9 statutory exception to the 90-day time limitation for motions
10 to reopen based on changed country conditions. See 8 U.S.C.
11 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Not so:
12 although the BIA referenced that exception in its decision, the
13 BIA ultimately relied on Yalcin’s failure to show prima facie
14 eligibility for asylum as the basis for its decision to deny
15 Yalcin’s motion to reopen. The BIA was entitled to do so.
16 Abudu, 485 U.S. at 104.
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of removal
19 that the Court previously granted in this petition is VACATED,
20 and any pending motion for a stay of removal in this petition
21 is DISMISSED as moot. Any pending request for oral argument
22 in this petition is DENIED in accordance with Federal Rule of
4
1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
2 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5